Judge: Frank M. Tavelman, Case: EC066999, Date: 2022-12-16 Tentative Ruling

Case Number: EC066999    Hearing Date: December 16, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEY FEES

ALLEGATIONS:

Plaintiff Arnon Raphael (“Plaintiff”) filed a Complaint[1] on July 13, 2017, alleging two causes of action: (1) To Set Aside Fraudulent Transfer and (2) Conspiracy. (Complaint, pg. 1.)

Plaintiff alleges in the Complaint that there was a separate Unlawful Detainer lawsuit in which Azim failed to pay monthly rent, real estate taxes, and insurance as well as abandoned Plaintiff’s leased premises at 11608-11610 Ventura Blvd., Studio City, California 91604. (Complaint, ¶¶9-10.) Plaintiff alleges that prior to signing the lease with Plaintiff, Azim was the owner and in possession two properties. (Complaint, ¶¶13-14.) One of the properties is a commercial property at 12445 Ventura Blvd., Studio City, California, and the other was a single-family residence at 4010 Fairway Avenue, Studio City, CA 91604. (Id.) Plaintiff alleges that on or about June 22, 2017, less than three weeks before the trial date for the prior lawsuit, Azim transferred by quitclaim deeds the properties to his son, Yama. (Complaint, ¶15.) Plaintiff alleges that the transfer was made to hinder, delay, or defraud Plaintiff of his claim and eventual judgement. (Complaint, ¶16.) Plaintiff also alleges that Defendants conspired to transfer legal title despite Azim retaining beneficial ownership by continuing to manage, control, occupy, and/or collect rent. (Complaint, ¶21.)

HISTORY:

A non-jury trial was held. (Judgement After Trial, pg. 1.) The Court, in a judgement filed on March 16, 2020, found for Defendants and held that the transfer of property was not done to avoid creditors and was not fraudulent or voidable. (Judgement After Trial, pg. 2.) The Second Appellate District Court of Appeal affirmed this order on October 12, 2021. (Appeal- Remittitur- Affirmed, pgs. 1-2.)

Defendants filed the motion for attorney fees on November 8, 2022. An opposition was filed by Plaintiff on December 5, 2022. There was no reply filed. To be timely, the reply needed to be filed by December 9, 2022.

RELIEF REQUESTED:

Azim Shaalemi (“Azim”) and Yama Shaalemi (“Yama”) (collectively, “Defendants”) move for an order granting their request for attorneys' fees in the amount of $9,690.00. This sum stems from a flat fee on direct appeal of $3,300.00, a filing cost on direct appeal of $390.00, and the flat fee of $6,000.00 regarding expunging the lis pendens and attempting to obtain order for fees and costs expended on previous trial counsel and to litigate the instant motion. (Motion, pg. 4.)

ANALYSIS:

I.          LEGAL STANDARD 

A ‘reasonable’ attorney’s fee award generally falls “within the sound discretion of the trial judge.” (Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659.) However, in making a determination on the reasonableness of attorney’s fees and costs, a trial court should consider (1) the nature of the litigation, (2) its difficulty, (3) the amount involved, (4) the skill required and the skill employed in handling the litigation, (5) the attention given, (6) the success of the attorney's efforts, (7) his learning and age, (8) his experience in the particular type of work demanded the intricacies and importance of the litigation, and (9) the labor and necessity for skilled legal training and ability in trying the cause, and (10) the time consumed. (Id. at pp. 638-39.)

California Rules of Court, Rule 3.1702(b)(2) states that “the parties may, by stipulation filed before the expiration of the time allowed under (b)(1), extend the time for filing a motion for attorney's fees: (A) Until 60 days after the expiration of the time for filing a notice of appeal in an unlimited civil case or 30 days after the expiration of the time in a limited civil case; or (B)  If a notice of appeal is filed, until the time within which a memorandum of costs must be served and filed under rule 8.278(c) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.”

California Rules of Court, rule 3.1702(c)(1) states that “a notice of motion to claim attorney's fees on appeal-other than the attorney's fees on appeal claimed under (b)-under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case…” Rule 3.1702 (c)(2) states that “ parties may by stipulation filed before the expiration of the time allowed under (c)(1) extend the time for filing the motion up to an additional 60 days in an unlimited civil case…”

California Rules of Court, rule 8.278(c) states that “within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.”  A remittitur is deemed issued when the clerk/executive officer enters it in the record.  (CRC, rule 8.272(d)(1)).

California Rules of Court, rule 8.278(d)(1) states that “a party may recover only the following costs, if reasonable: …(a) filing fees ;(b) the amount the party paid for any portion of the record, whether an original or a copy or both…the cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying; (c) the cost to produce additional evidence on appeal; (d) the costs to notarize, serve, mail, and file the record, briefs, and other papers; (e) the cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply; (f) the cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and (g) the fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.”

California Rules of Court, rule 8.278(d)(2) states that “unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”

II.          PROCEDURAL ISSUES & ANALYSIS

As a threshold matter, Plaintiff argue that Defendants’ motion for attorney fees on appeal is untimely. (Opposition, pg. 2.)

Plaintiff argues that the parties did not stipulate to extend time, (Opposition, pg. 2.) and the remittitur issued on December 14, 2021.  Plaintiff asserts that the motion was on November 8, 2022, more than nine months after the deadline. (Ibid.) Defendants’ motion provides a declaration verifying that the Court of Appeal affirmed judgement on October 12, 2021 [with the remittitur issued December 14, 2021]. (Motion, Decl. McBride, ¶8.) Defendants’ counsel asserts that he received a flat fee of $6,000 to “(a) inquire into expunge the lis pendens on Mr. Shaalemi’s Studio City property (one of the results of Plaintiff’s prior judgment against him); (b) attempt to recover fees and costs from previous trial counsel; (c) attempt to recover fees and costs in relation to the direct appeal; and (d) draft, file, serve and argue the instant motion.” (Motion, Decl. McBride, ¶¶15-16.) Defendant’s counsel also asserts that a flat fee of $3,300 was paid to defend against Plaintiff’s appeal and $390 was paid for the appeal’s filing cost. (Motion, Decl. McBride, ¶¶8-10.) Defendants’ counsel refers to exhibits in the declaration, but no exhibit was attached to the Defendants’ moving papers.

Defendants and Plaintiff both assert that the remittitur for the appeal was issued on December 14, 2021.  (Opposition, pg. 2; Motion, Decl. McBride, ¶13.) Assuming the date is correct, 40 days after the issuance of the remittitur is January 23, 2022. Defendants’ motion for attorney fees regarding the appeal and for attorney fees for services up to and including the rendition of judgement in the trial court is untimely as the motion was filed on November 8, 2022. No stipulation was filed regarding time to extend.

III.          CONCLUSION 

Defendants’ motion for attorney fees and costs is denied as the motion to file for attorney fees from the appeal was untimely as per California Rules of Court, rule 3.1702(b) and (c) as well as Rule 8.278(c).

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Azim and Yama Shaalemi’s Motion for Attorney Fees came on regularly for hearing on December 16, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR ATTORNEY FEES IS DENIED AS UNTIMELY

DATE:  12/16/2022                                        _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles